Israel v. Wofford

Filing 14

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Phyllis J. Hamilton on 3/29/17. (Certificate of Service Attached) (kcS, COURT STAFF) (Filed on 3/29/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MAX L. ISRAEL,
Petitioner,

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United States District Court
Northern District of California

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Case No. 16-cv-02826-PJH

v.
C. WOFFORD,

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
DENYING CERTIFICATE OF
APPEALABILITY

Respondent.

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This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C.

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§ 2254. The court ordered respondent to show cause why the writ should not be granted.

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Respondent filed an answer and lodged exhibits with the court, and petitioner filed a

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traverse. For the reasons set out below, the petition is denied.
BACKGROUND

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Petitioner was convicted in 2005 for carjacking and related counts. Clerk’s

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Transcript (“CT”), Ex. E at 356-61. The trial court found that petitioner had three prior

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strikes arising from a 1999 Santa Clara County conviction and a 2000 Santa Cruz County

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conviction. CT, Ex. E at 217-18, 284-85, 414-15. Petitioner was sentenced to 85 years

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to life. CT, Ex. E at 541, 543. In 2013 petitioner was resentenced for the 2005 conviction

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due to Proposition 36, which reformed the three strikes law. Reporter’s Transcript (“RT”)

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at 36-38. The new sentence was 25 years to life, consecutive to 13 years and four

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months. Id. In this federal habeas petition, petitioner challenges the 2013 resentencing.

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Prior Conviction Enhancement Findings

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1999 Santa Clara County

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On March 26, 1999, petitioner pled guilty to two counts of first degree burglary and

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was sentenced to six years in prison. Answer, Ex. H.

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2000 Santa Cruz County

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On March 3, 2000, petitioner pled guilty to one count of first degree burglary and

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was sentenced to four years in prison. Answer, Ex. I.

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2005 Santa Clara County

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On April 6, 2005, a jury convicted petitioner of carjacking with a firearm

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enhancement, vehicle theft with a prior conviction for vehicle theft, and reckless driving

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while evading an officer. CT, Ex. E at 356-61, 408-09. The trial court found that

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petitioner had three prior strike convictions, two prior serious felony convictions and four
prior prison terms. CT, Ex. E at 414-15. The trial court denied petitioner’s motion to

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United States District Court
Northern District of California

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dismiss one or more of his prior strike allegations brought in a motion pursuant to People

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v. Romero, 13 Cal. 4th 497 (1996). CT, Ex. E at 417, 541, 543-44. Petitioner was

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sentenced to 85 years to life. CT, Ex. E at 541, 543. Petitioner’s appeals and state and

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federal habeas petitions regarding this conviction were all denied. Answer, Exs. G, N, L,

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M; Israel v. Evans, No. 09-cv-0650-PJH (N.D. Cal. Feb. 5, 2013).

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2013 Santa Clara County Resentencing

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Petitioner filed a request to be resentenced pursuant to Proposition 36. The trial

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court found that petitioner was entitled to resentencing on the vehicle-theft count and

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reckless-driving count, but was not entitled to resentencing on the carjacking count. CT,

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Ex. A at 210; RT at 11-12. A resentencing hearing was held on July 18, 2013, where

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petitioner waived his right to counsel and represented himself. CT, Ex. A at 220-28; RT

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at 26. The trial court resentenced petitioner on the two counts, and the new sentence

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was 25 years to life, consecutive to 13 years and four months. CT, Ex. A at 229-30; RT

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at 36-38.

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Petitioner appealed, and the California Court of Appeal affirmed the resentencing.

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People v. Israel, No. H039971, 2015 WL 1734307, at *1 (Cal. Ct. App. Apr. 14, 2015).

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Petitioner did not seek review in the California Supreme Court. Petitioner did file several

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state habeas petitions in the California Court of Appeal and California Supreme Court
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that were all denied. Answer, Exs. K, J, P, Q. The underlying facts of the various

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convictions are not relevant to the claims in this petition.

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STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or sentence

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on the basis of a claim that was reviewed on the merits in state court unless the state

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court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established Federal law, as determined

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by the Supreme Court of the United States; or (2) resulted in a decision that was based

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on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions

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United States District Court
Northern District of California

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of law and to mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S.

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362, 407-09 (2000), while the second prong applies to decisions based on factual

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determinations, see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

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A state court decision is “contrary to” Supreme Court authority, that is, falls under

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the first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to

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that reached by [the Supreme] Court on a question of law or if the state court decides a

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case differently than [the Supreme] Court has on a set of materially indistinguishable

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facts.” Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable

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application of” Supreme Court authority, falling under the second clause of § 2254(d)(1),

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if it correctly identifies the governing legal principle from the Supreme Court’s decisions

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but “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.

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The federal court on habeas review may not issue the writ “simply because that court

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concludes in its independent judgment that the relevant state-court decision applied

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clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the

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application must be “objectively unreasonable” to support granting the writ. Id. at 409.

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Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual

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determination will not be overturned on factual grounds unless objectively unreasonable

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in light of the evidence presented in the state-court proceeding.” See Miller-El, 537 U.S.
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at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).
The state court decision to which § 2254(d) applies is the “last reasoned decision”

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of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v.

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Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion

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from the highest state court to consider the petitioner’s claims, the court looks to the last

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reasoned opinion. See Nunnemaker at 801-06; Shackleford v. Hubbard, 234 F.3d 1072,

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1079 n.2 (9th Cir. 2000).
The standard of review under AEDPA is somewhat different where the state court

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gives no reasoned explanation of its decision on a petitioner’s federal claim and there is

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no reasoned lower court decision on the claim. In such a case, as with all claims in this

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United States District Court
Northern District of California

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petition, a review of the record is the only means of deciding whether the state court’s

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decision was objectively reasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.

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2003); Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). When confronted with

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such a decision, a federal court should conduct an independent review of the record to

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determine whether the state court’s decision was an objectively unreasonable application

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of clearly established federal law. Himes, 336 F.3d at 853; Delgado, 223 F.3d at 982.
DISCUSSION

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As grounds for federal habeas relief, petitioner asserts that at the resentencing: (1)

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there were various sentencing errors; and (2) he was denied counsel.

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I.

SENTENCING

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Petitioner asserts that the resentencing violated his rights because he was not

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allowed to challenge his prior convictions; there were violations of Apprendi v. New

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Jersey, 530 U.S. 466 (2000) and Descamps v. United States, 133 S. Ct. 2276 (2013);

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and the court ignored his “Prop. 8 priors1.”

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It appears that petitioner is referring to his prior serious felony convictions that served
as five-year enhancements under California Penal Code section 667(a). This is
sometimes referred to in state court as a “Prop. 8 prior.” See, e.g., People v. Vera, 122
Cal. App. 4th 970, 974-75 (2004); RT at 35.
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LEGAL STANDARD

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State sentencing courts must be accorded wide latitude in their decisions as to

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punishment. See Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987). Generally,

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therefore, a federal court may not review a state sentence that is within statutory limits.

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See id. To the extent that a petitioner argues that state law was incorrectly applied, any

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such claim is denied. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the

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province of a federal habeas court to reexamine state-court determinations on state-law

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questions. In conducting habeas review, a federal court is limited to deciding whether a

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conviction violated the Constitution, laws, or treaties of the United States.”); see also
Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993) (federal habeas courts must defer to

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United States District Court
Northern District of California

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state courts’ interpretations of their own state laws, including state sentencing laws). This

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court must defer to the state court’s interpretation of its own sentencing laws.

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ANALYSIS

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A.

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Petitioner argues that during resentencing he was not permitted to challenge his

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Challenges to Prior Convictions

prior convictions from 1999 and 2000.
A petitioner generally may not attack the constitutionality of a prior conviction used

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to enhance a later sentence. "[O]nce a state conviction is no longer open to direct or

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collateral attack in its own right because the defendant failed to pursue those remedies

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while they were available (or because the defendant did so unsuccessfully), the

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conviction may be regarded as conclusively valid. If that conviction is later used to

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enhance a criminal sentence, the defendant generally may not challenge the enhanced

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sentence through a petition under § 2254 on the ground that the prior conviction was

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unconstitutionally obtained." Lackawanna Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 403-04

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(2001) (citation omitted); see also United States v. Martinez-Martinez, 295 F.3d 1041,

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1043-44 (9th Cir. 2002) (bar against collateral attacks on prior convictions also applies

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where sentencing court declined to reduce sentence based on circumstances of prior

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conviction). The only exception to the rule barring challenges to prior convictions used to
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enhance current sentences is that a petitioner may challenge a prior conviction on the

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ground that there was a failure to appoint counsel in that case in violation of the Sixth

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Amendment. Coss, 532 U.S. at 404.
Petitioner is unable to challenge these prior convictions, and the denial of this

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claim by the state court was not unreasonable. There are no allegations that petitioner

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was denied counsel in 1999 or 2000 when he pled guilty to these charges.2 His claim

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that he was denied counsel during the 2013 resentencing will be addressed below. To

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the extent petitioner argues that the resentencing court denied him an opportunity to

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bring new Romero motions, his claim is denied. Petitioner’s Romero motions were
denied at the original sentencing in 2005. He identifies no law that would allow for new

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United States District Court
Northern District of California

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Romero motions, and the California Court of Appeal denied this claim in a reasoned

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opinion. Israel, 2015 WL 1734307, at *2-4. If this claim was exhausted, it is denied,

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because this is solely a matter of state law.

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B.

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Petitioner next contends that the resentencing court violated his rights under

Apprendi v. New Jersey

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Apprendi when it relied on the same prior convictions that were found true in the original

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2005 sentencing.
Apprendi held that “[o]ther than the fact of a prior conviction, any fact that

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increases the penalty for a crime beyond the prescribed statutory maximum must be

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submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490 (emphasis

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added). In this case the resentencing court only relied on the prior convictions, which

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does not offend Apprendi. Where “only the existence of a prior conviction is at issue,” a

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petitioner “has no federal right to have a jury decide that question.” Davis v. Woodford,

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446 F.3d 957, 963 (9th Cir. 2006). Petitioner is not entitled to relief.

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The resentencing court noted that petitioner had only represented himself while filing
writs and similar filings and had always been represented by counsel with respect to his
prior convictions and had never represented himself in a prior court proceeding. RT at
22, 25.
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C.

Descamps v. United States

Petitioner also argues that his prior burglary strike convictions should be stricken
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in light of Descamps.
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Descamps found that a burglary conviction pursuant to California Penal Code
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section 459 was not a violent felony under the Armed Career Criminal Act (ACCA), 18
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U.S.C. § 924(e), and when imposing an increased sentence based on prior convictions
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under the ACCA, federal sentencing courts may not apply the “modified categorical
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approach” where the prior conviction involved the violation of a so-called “indivisible”
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statute which “criminalizes a broader swath of conduct than the relevant generic offense.”
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133 S. Ct. at 2281-82.
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The Supreme Court in Descamps did not announce a constitutional rule, but one
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United States District Court
Northern District of California

of federal statutory interpretation. Ezell v. United States, 778 F.3d 762, 766-67 (9th Cir.
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2015). The Supreme Court did not determine whether a California burglary conviction
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may constitute a strike under California law. California law determines what constitutes a
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strike. Under California law any first degree burglary in sections 459 and 460(a) is a
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strike conviction. Cal. Penal Code sections 1170.12(b)(1), 1192.7(c)(18). Thus, despite
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petitioner’s argument that the resentencing court looked past his 2005 conviction and
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found additional facts related to the conviction, petitioner’s three prior burglary
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convictions were for first degree burglary. CT, Ex. E at 426, 490-91, Ex. H, Ex I; Cal.
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Penal Code sections 459, 460(a). Therefore, under California law, they are strike
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convictions. The resentencing court did not perform extrajudicial fact-finding, as
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described in Descamps. The state court denial of this claim was not an unreasonable
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application of Supreme Court authority, and this claim is denied.
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D.

Proposition 8 Priors

At the resentencing hearing, petitioner’s prior convictions, also known as Prop. 8
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priors, prompted five year enhancements under Cal. Penal Code section 667(a).
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Petitioner alleges that the resentencing court erred by not addressing these
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enhancements at the resentencing and by not allowing him to challenge them.
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Petitioner raises only a matter of state law with respect to the procedures at his

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resentencing. “[F]ederal habeas relief is not available to redress alleged procedural

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errors in state post-conviction proceedings.” Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir.

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1998). The resentencing court noted that the resentencing hearing under California

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Penal Code section 1170.26 did not involve relitigating his prior convictions and the court

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added the section 667(a) enhancements. RT at 32, 35-37. The state courts denied

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these claims. Petitioner is not entitled to relief on this claim as it is purely a matter of

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state law.
To the extent that petitioner argues there was a violation of Double Jeopardy, any

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such claim is denied. The use of prior convictions to enhance sentences for subsequent

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United States District Court
Northern District of California

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convictions does not violate the Double Jeopardy Clause. See Spencer v. Texas, 385

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U.S. 554, 560 (1967) (upholding use of prior convictions to enhance sentences for

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subsequent convictions even if, in a sense, defendant must relitigate in sentencing

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proceeding conduct for which he was already tried). Any such challenge is wholly without

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merit. See Jackson v. Nelson, 435 F.2d 553, 553 (9th Cir. 1971) (dismissing contentions

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of equal protection, bill of attainder, double jeopardy and ex post facto against recidivist

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statute as meritless).

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II.

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Petitioner appears to argue that he was denied counsel at the resentencing

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DENIAL OF COUNSEL

hearing with respect to challenging his prior convictions.

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BACKGROUND

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At the resentencing hearing, petitioner was initially represented by counsel.

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Petitioner had filled out a Faretta3 waiver form and filed a motion to represent himself.

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RT at 19-20. At the hearing, the resentencing court discussed the implications of self-

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representation with petitioner and granted the Farretta motion. RT at 19-26. During the

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discussion, petitioner also noted that he had always been represented by counsel during

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Faretta v. California, 422 U.S. 806 (1975).
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his prior cases. RT at 25.

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ANALYSIS

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Petitioner’s exact claim is difficult to discern. To the extent he has even exhausted
a claim regarding his Farretta waiver, he has failed to show that the trial court erred in

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granting the motion. He also argues that the “state failed to properly inform Petitioner he

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was entitled to counsel to plead and prove his serious Santa Clara felony convictions . . .

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.” Amended Petition (Docket No. 6) at 16. As discussed above, petitioner’s 2013

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resentencing hearing did not involve relitigating his prior convictions, which were strikes,

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nor has he cited any law that would have allowed him to relitigate those convictions.

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After the 2005 jury conviction, a hearing was held where petitioner’s prior convictions

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United States District Court
Northern District of California

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were proven. Answer, Ex. F at 479-504. During this hearing, petitioner was represented

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by counsel. To the extent petitioner argues that he was not represented by counsel at

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the 2005 hearing, that claim is denied as it is contradicted by the record. Because

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petitioner’s prior conviction strikes did not need to be proven again, his claim that he was

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denied counsel to argue against the conviction strikes at the 2013 resentencing hearing

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is also denied.

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To the extent that petitioner argues he was denied counsel in 1999 and 2000,

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when he was convicted of the prior crimes, any such claim is also denied. Petitioner fails

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to specifically argue he was denied counsel at those times, and he stated at the Farretta

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hearing that he had always been represented by counsel. Moreover, in a previous state

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habeas petition, which was denied, petitioner unsuccessfully argued that his counsel

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rendered ineffective assistance. Answer, Ex. K. For all these reasons, this claim is

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denied.

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EVIDENTIARY HEARING

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Petitioner also requests an evidentiary hearing, though he does not provide a

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specific request or analysis. This request is denied because petitioner has not shown he

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is entitled to an evidentiary hearing in connection to any of these claims. See Cullen v.

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Pinholster, 563 U.S. 170, 183 (2011) (when state court record precludes habeas relief
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under § 2254(d), district court not re
equired to h
hold eviden
ntiary hearin
ng).
APPE
EALABILIT
TY
The fed
deral rules governing habeas cas brough by state p
ses
ht
prisoners re
equire a

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dis
strict court that denies a habeas petition to g
t
p
grant or den a certific
ny
cate of appe
ealability

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(“C
COA”) in the ruling. Se Rule 11( Rules G
e
ee
(a),
Governing § 2254 Cas
ses, 28 U.S
S.C. foll.

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§ 2254 (effect
2
tive Decem
mber 1, 2009
9).

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To obta a COA, petitioner must make “a substan
ain
e
ntial showin of the de
ng
enial of a

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constitutional right.” 28 U.S.C. § 22
U
253(c)(2). “W
Where a diistrict court has rejecte the
ed

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constitutional claims on the merits, the showin required to satisfy § 2253(c) is
t
ng
s
straightforwar The pet
rd:
titioner mus demonstr
st
rate that reasonable ju
urists would find the
d

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United States District Court
Northern District of California

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dis
strict court’s assessme of the co
s
ent
onstitutiona claims de
al
ebatable or wrong.” See Slack v.

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Mc
cDaniel, 529 U.S. 473, 484 (2000 Section 2253(c)(3) requires a court gran
9
,
0).
)
nting a COA
A

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to indicate wh
hich issues satisfy the COA stand
dard. Here, the court f
finds that n
none of the

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cla
aims meet the above standard an accordingly DENIES the COA. See gene
s
nd
S
.
erally Miller
r-

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El, 537 U.S. at 327.
a
CONCLU
USION

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1. The petition fo writ of habeas corpu is DENIE on the m
e
or
us
ED
merits. A ce
ertificate of
e11(a) of the Rules Go
e
overning Se
ection 2254 Cases.
4
appealability is DENIED. See Rule

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2. The clerk shall close the file
e
f

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IT IS SO ORDER
S
RED.

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ated: March 29, 2017
h
Da

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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2016\2016_02826
6_Israel_v_Woff
ford_(PSP)\16-cv
v-02826-PJH-hc.
.docx

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0

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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5

MAX L. ISRA
M
AEL,

Case No. 1
16-cv-02826
6-PJH

Plaintiff,
6
v.

CERTIFIC
CATE OF S
SERVICE

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8

C. WOFFORD
D,
.
Defendant.

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10

United States District Court
Northern District of California

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
Dis
strict Court, Northern Di
istrict of Cal
lifornia.

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13
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That on March 29, 2017, I SER
n
RVED a true and correct copy(ies) of the attache by
f
ed,
pla
acing said co
opy(ies) in a postage paid envelope a
d
addressed to the person(s hereinafte listed, by
s)
er
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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19

ax
I
Ma L. Israel ID: P-38715
E2-220
1 Kings Way
K
Av
venal, CA 93
3204

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21
22

Da
ated: March 29, 2017
2

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usan Y. Soon
ng
Su
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N
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